IV.3. Overpass Skate Park Operational Agreement with Action Sports of Minnesota, Inc. DBA The Third Lair; Olson�
Date: 4/18/18 Ci�y of Hopkios Council Report 2018-050
Overpass Skate Park Operational Agreement With
Action Sports of Minnesota, Inc dba The Third Lair
Proposed Action
Staff recommends adoption of the following motion: Move to approve the Operatars Agreement
between Action Sports of Minnesota, Inc dba The Third Lair and the Citv of Honkins for the
operation of the Horokins Overpass Skate Park for the 2018 - 2020 seasons.
Overview
Third Lair has operated the Overpass Skate Park under the terms of the operator's agreement
since 2005. The agreement presented in this report has Third Lair operating the park under the
same operator's ageement signed in 2015. Third Lair is proposing to operate the park with the
same public hours and at the same admission rates as 2017. The city's expenditure on new
equipment/improvements will remain the same as the 2015 agreement.
Primary Issues to Consider
• How does the 2018 Operators Agreement differ for the 2015 Operators Agreement?
• How will this agreement impact Hopkins residents and park users?
• Does the Operations Agreement meet the needs of the City?
SupportinQ Information
• Hopkins Overpass Skate Park Operating Agreement
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Don Olson
Pavilion Manager
Financial Impact: $ 7,000/vear Budgeted: Y/N Yes
Source: Park Dedication Fund
Notes:
How does the 2018 Operators Agreement differ from the 2015 aereement�
The agreement has been reviewed and revised by the city attorneys.
How will this aereement impact Hopkins residents and nark users?
The park will be open once again as a service to resident skaters & BMX bikers, giving them a suitable
place to practice their sport. The park provides a safe location in the community for skaters & bikers, and
creates a safe separation between skaters, pedestrians, and motor vehicles. The addition of the new and
redesigned equipment each year crea[es a new experience for those who have used the park regularly in
the past.
Does the Onerations AQreement meet the needs of the Cit�
In the past Ciry Council has impressed upon staff tha[ the Council would like to see a few key objectives
met - the skate park is open to the public as much as possible, that the price is affordable, and the park is
safe.
The Third Lair is committed to staffing the park on the same schedule as previous years and opening
more hours if there is demand for it. The park admission rate will be as affordable as in years past. Third
Lair will carry the appropriate insurance as recommended to the Ciry by the League of Minnesota Cities
Insurance Trust. The Third Lair's insurance provider will require the use of liability waiver forms to be
completed by all participants and require helmets and encourage additional safety equipment by all
participants.
W ith regards to the budget The Third Lair will pay all operating expenses associated with the park and
retain all the revenues generated from the park. The Operators Agreement eliminates the City's direct
expenses associated with the daily operations of the Overpass Skate Park.
For these reasons staff feels this agreement meets the needs of the City of Hopkins in the operations of
the Overpass Skate Park.
Current Hours of Oaeration and Rates
2018 Admission: $8 /$6 for residents or 3rd Lair Members
2018 Hours:
• April 29 - June 10: Open Sat & Sunday Only, Noon - 7pm
• June 11 - Sep 2: Open 7 Days/Week, Noon - 7pm Daily
• Sep 3- Oct 21: Open Sat & Sunday only, Noon - 7pm
Park Usa2e
Open Skate Usage:
2017: 1,369 Total users = 19/Day
2016: 1,345 Total users - 18/day
2015: 866 Total users = 12/day
Scooter Camp Participation:
2017 (4 Weeks Available): 37 Participants = 9/Session (there were only 10 spaces available each week).
2016 (10 Weeks Available): 51 Participants = 5/Session
2015 (11 Weeks Available): 76 Participants=7/Session
Hopkins Overpass Skate Park Operating Agreement
THIS AGREEMENT ("AgreemenY') is made and entered into effective May l, 2018, by and between the
City of Hopkins, a municipal corporation under the laws of Minnesota ("City") and Action Sports of Minnesota, Inc,
a Minnesota wrporation doing business as The Third Lair, ("Operaror").
The Ciry operates a skate park faciliry, including the equipment, building, parldng lot a�d other re]ated
improvements, all located a[ 100 Washington Avenue Sou[h, Hopkins, Minnesota, known as [he Overpass Skate Park
(the "Faciliry"). The City oums the equipment located at the Facility and leases the Facility site ("Premises") from
the Minneso[a Department of Transportation ("MNDOT").
The City and the Operator desire [o enter into an Agreemen[ se[[ing forth the terms and condi[ions under
which the Operator will operate the Facility for and on behalf of [he City.
The City and the Opera[or agree as follows:
1. The City hereby hires the Operator and the Operator hereby agrees to operate the Faciliry pursuant to the
terms of the Agreement.
2. i'erm. The term of this Agreement shall begin May I, 2018, and shall continue until Oc[ober 31, 2020,
unless earlier terminated by the Ciry. The Operator acknowledges that the City has made no representations or
promises to [he Operator regarding any renewa] or extension of this Agreemen[.
3. Comnensa[ion Neither the City nor the Operator shal] make any direct paymen[ to the other as
consideration for the Agreemen[. As sole compensa[ion for all services to be perfoaned hereunder, the Opera[or shall
receive and retain all revenues of the Facili[y, including rental or other charges for use of the facility, admission
charges, concessions, and income of any kind, subject to payment of expenses of the Facility as herein provided.
4. Exvenses. The Opera[or shall pay all costs and expenses of any nature or kind whatsoever attribu[able to
the Facility or Premises dunng Ihe term of this Agreement. These cosCs and expenses shall include, bu[ are not
limited to the following: wages and insurance for all employees; u[ilities, including eleckicity, telephone, e[c.:
maintenance of the Faciliry and Premises, including but not limited to sweeping sidewalks and Premises; repair,
maintenance and upkeep of [he building; repair, maintenance, and upkeep of all equipment and improvemen[s to the
Facility and [he Premises, either currentty placed or [o be placed on the Facility or Premises by either [he City or
Operator, and; all insurance premiums relative to [he Premises. It is specifically contemplated and understood by the
parties that by [he terms of this section, the City shall no[ inwr any financial responsibility relative to the Facility or
the Premises during the tertn of this Agreement.
5. Taxes. Except as specifically provided herein, the Operator shall pay and discharge as they become due
al] governmental charges on or against the Premises, or on or agai�st the City by reason of its ]ease of the Premises.
The parties con[emplate and intend tha[ the Premises shall be and remain during the term of this agreement exempt
from general real estate tarzes. If such taxes become payable upon the Premises during the term hereof, [he Operator
shall pay or reimburse the City for the amount thereof, less that part of such taxes payable to or levied by the Ciry of
Hopkins or any instrumentality thereof.
6. Use of Premises Subject to other terms and provisions conYained herein, and for the period of time
beginning each year of this Agreement on May 1 and continuing tluough October 31, the Operator shall cause the
Premises to be used for the following purposes and subject to the following restnctions: A skate park faciliry and any
use incidental [here[o or any other use agreed upon in writing be[ween the parties here[o. During the tertns of the
Agreement or any renewal thereof, the Operator shall comply with all applicable laws affecting the Premises,
whether federal, state, or local. The Operator shall not commi[ or allow to be committed any waste on, destruction or
damage [o, or nuisance on the Premises. Should the Operator commi[ or allow to be committed any waste on or
damage or destruction to the Premises, the Operator shall immediately restore the Premises to the original condition
of the Premises at the inception of this A�reement or as the Premises have been improved by either [he City or
Operator, subject to ordinary wear and [ear. The Operator must operate the Facility and Premises in stric[ compliance
with the terms of the MNDOT lease, a copy of which is attached hereto as Exhibit A.
7. Care oF Premises. All care, maintenance, and repair of the Premises and all improvements currently
placed thereon or to be placed thereon shall be the sole responsibility of the Operator and shal] be performed at the
Operator's expense.
8. Ciry's Riaht to Entec The Operator shall permiC the City and the agents and employees of [he Ciry to
enter in[o and on the Premises at all reasonable tunes for any proper puipose.
9. Assienment and Sublettine. The Opera[or shall not assign this Agreement or let the Premises or any part
thereof, whether by voluntary act, operation of law, or otherwise, without the prior written consent of the City in each
instance, except that [he Operator may permit use of the Facility, for rental, admission or other charges, in the normal
course of business, without such consenL Consent by the City to any assignment of [his Agreement or to any letting
of the Premises or part thereof shall not be a waiver of the City's rights under this Agreement as to any subsequent
assignment or Ietting. The City's right to assign this Agreement is and shall remain unqualified and no assignment by
the City shall release the Operator of any of its obligations under this Agreement.
If the Operator is a corpora[ion, any transfer of this Agreement tivough merger, consolidation, corporate
reorganization, or ]iquidation or any Vansfer, or hypothecation, shall constitute an assignment of this Agreement
requiring the prior written consent of the City.
10. Imnrovements and Altera[ions Excep[ as otherwise provided in Paragraph 10.A below, the Opera[or
shall not be permi[[ed to make any improvements or alterations to the Premises without the prior written consent of
the City, except, however, the Operator shall, at its expense, make any repairs to the premises which are needed to
main[ain the Premises in the same condition they were in at the inceptiou of this Agreement or as improved, subject
to ordinary wear and tear.
A. The Operator shall acquire and install at the Facility [he equipment described in Exhibit B
Improvements & New Equipmen[ attached hereto (the "New EquipmenY') during the term of this
Agreement. The New Equipment shall not exceed a total price, ins[alled, of $21,000. The Operator
must acquire and install not less [han $7,000 of [he New Equipment by May 31, 2018, acquire and
install not less [han $14,000 of the New Equipment by May 31, 2019, and acquire and install the
balance of [he New Equipment by May 31, 2020. Failure to meet Chis condition is cause for the Ciry to
[erminate this AgreemenL Prior to April 1 of each year of [his Agreement, the Operator shall provide
the City with a Construction Plan de[ailing the New Equipment to be acquired and installed by May 31
of tha[ year. The City will reimburse the Operator for [he New Equipmen[ on the following schedule:
$7,000 on or before June 15, 2018, upon receip[ from [he Opera[or of written proof of acquisi[ion and
installation of New Equipment equal to or exceeding $7,000; an addi[ional $7,000 on J�ne 15, 2019,
upon receipt from the Operator of wri[ten proof of acquisition and installation of New Equipment
equal [o or exceeding at ]east $14,000; the final $7,000 on June I5, 2020, upon receipt from the
Operator of written proof of acquisi[ion and installation of New Equipment equa] to or exceeding at
least $21,000. The Opera[or warran[s that the New Equipment will be free from defects in material
and workmanship for a period of one year from the date the New Equipment is installed. If defects in
the material or workmanship related to the New Equipmen[ occurs within one year from date of
installation, the Operator will fix or replace the New Equipment, as necessary, at i[s own cost.
11. Mechanic's Lien The Operator shall not permi[ any mechanic's lien, judgment or other lien of any type
to encumber the Premises.
12. Covenants to Hold Harmless. The Operator shal] indemnify, defend, and hold harmless the City and its
agen[s and its employees from and against all claims, damages, losses, and expenses, inclading attomey's fees,
arising out of or resulting from the mai�tenance or use of the Premises, provided that any such claim, damage, loss,
expenses is attributable [o bodily injury, siclmess, disease or death, or to injury to or destruction of tangible property
(other than said property itsel� including [he loss of use resulting therefrom. The Operator also shall indemnify,
defend and hold harmless the City and its agents and its employees from and agains[ any claims for costs or expenses
incurred to operate the Faciliry during this Agreement, said obligation to indemnify to include any attomey's fees
incurred by the City as a result of such a claim.
13. Insurance. A) Liabiliry: The Operator shall main[ain comprehensive general liabiliry insurance with a
limit of not less than $1,000,000 per each occurrence and shall provide a certificate of insurance showing evidence
of such insurance before operating [he Facility in any manner. This insurance shall cover liability arising from
premises operations, independent contractors, personal injury and advertising injury, and contractually assumed
liability. The City shall be named as an additional insured under [he comprehensive liability insarance. B) Workers'
Compensa[ion Insurance: The Operator shall provide a certificate of insurance showing evidence of workers'
compensation coverage or provide evidence of qualification as a self-insurer of workers' compensation.
14. Default In the event of any default of this Agreement by either party, which remains unremedied after
[en (10) days wri[te� notice specifying the default, the aggrieved party may, in addition to any o[her rights or
remedies it may have, by written notice declare this Agreement to be terminated, in which case all rights and
liabilities hereunder shall cease, and the Operator shal] forthwith surrender Che Premises to the City.
15. Ownershin of Improvemen[s on Termination of Aereement The City is and shall be the absolute
owner of any struc[ures or other improvemen[s of any nahue or kind situa[ed on the Premises at the beginning of the
Agreemen[ or installed afrer the beginning of [he Agreemen[, regardless of who placed such structures or other
improvemen[s [hereon, and specifically including but not limi[ed to the New Equipmen[, and [he Operator shal] not
have any interest whatsoever therein. The City shall have no obliga[ion [o compensate the Operator for any monies
expended by the Operator for cons[ruction of structures or other improvemen[s on the Premises o[her than for those
specifically reques[ed in writing by the City.
16. Amendments Modification and Waiver No amendment, modifica[ion, or waiver of any condition,
provision, or term of this agreement shall be valid or of any effect unless made in writing, signed by the party or
parties to be bound or iPs duly authorized representative, a�d specifying with particulariry the exten[ and nawre of
such amendment, modification, or waiver. Any waiver by any party of any default of another party shall not affect or
impair any righ[ arising from any subsequen[ default.
17. Notices. Any notice, demand, or o[her communication required or permitted to be given hereunder shall
be deemed delivered and effectively given when delivered personally to the representa[ives of the City and Operator
identified below or one (1) business day after being mailed by registered or certified mail, re[urn receipt reques[ed,
addressed as follows:
To City: City of Hopkins
Attention: City Manager
1010 First Street South
Hopldns, MN 55343
Copy to: Julie Eddington
Kennedy & Graven, Chartered
470 U. S. Bank Plaza
200 South Sixth Street
Minneapolis, MN 55402
To Operator. The Third Lair
A[tention: Mark Rodriguez
850 Florida Ave. S.
Golden Valley, MN 55426
Either party may change i[s address or the identity of its designated represen[a[ive named above by written notice to
the other party in [he manner s[ated in this paragraph.
18. Miscellaneous Provisions:
a. The captions and headings used in this Agreement are used for convenience only and shall not be used in
construing or in[erpreting of this Agreement.
b. The Operator is an independen[ contractor of the City, and shall act only pursuant to and in accordance with
the terms of this Agreement No provision of the Agreement, or any acts of the parties hereto, shall be
deemed to crea[e a partnership orjoint ven[ure behveen the City and Operator.
c. This Agreement represents the en[ire Agreement between the Ciry and the Operaror with respect to i[s
subject matter, and supersedes all prior agreements between the parties related to the subject matter of this
agreement Any amendment [o this Agreement must be in writing and signed by both parties.
d. The Operator agrees tha[ it shall comply with all state and federal codes, statu[es, rules, regulations and
ordinances applicable to the performance of its duties and responsibilities under this Agreement.
e. Each and every provision of this Agreement is in[ended to be severable. If any term or provision hereof is
determined to be illegal or unenforceable for any reason whatsoever, such term or provision shall be
severed from this Agreement, and shall affec[ the validity of enforceabiliry of the remaining terms aod
provisions of this Agreement.
E This Agreemen[ shall be governed by, construed and enforced in accordance with the laws of the State of
Minnesota.
IN WITNESS WHEREOF, the parties hereto have executed and entered in[o this
Agreement effec[ive as of the date first above wri[ten.
CITY OF HOPKINS
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ACTION SPORTS OF MINNESOTA, INC.
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